Course:Public Law - Group 2 - Insite and the Division of Powers
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| LAW 505 | |
| Section: | 002 |
| Instructor: | Robert Danay |
| Email: | rdanay@mail.ubc.ca |
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Question 1
Imagine you are a judge at the Supreme Court of Canada. How do you resolve the federalism issue in the appeal of the PHS case?
This case raises fundamental questions concerning the division of powers under the Canadian constitution. The answer will have significant implications on the balance of powers between the federal and provincial governments.
Review of trial decision
At trial, Justice Pitfield reasoned as follows:
- The difficulty in this case results from the fact that the CDSA prohibition against possession indirectly controls injection, which is not proscribed by the criminal law, and in doing so, has an incidental effect upon a vital part of a provincial health care undertaking. As a result, the federal power to legislate in relation to criminal law, and the power of a provincial delegate to provide health care services meet head-to-head in conflict. This is a classic case of “double aspect”. That being the case, the doctrine of interjurisdictional immunity cannot be applied [para 118]
Justice Pitfield's conclusion that the doctrine of interjurisdictional immunity should not be applied was based on statements by the Supreme Court that the doctrine should be used sparingly, and not used where the subject matter presents a double aspect [para 118]. Justice Pitfield further noted that while the Supreme Court had said that the doctrine was reciprocal, it was most often, if not always, applied to ensure the provincial legislation does not encroach upon federal power. [para 118]
Having found that the doctrine of interjurisdictional immunity, Justice Pitfield applied the other method for resolving conflicts between federal and provincial laws - the doctrine of federal paramountcy. [para 120] Applying this doctrine, Justice Pitfield held that the criminal law must prevail.
Review of appeal decision
In the first instance, it is worth noting that the approach taken by Justice Pitfield was followed closely by one of appeal judges, Justice Smith. In her dissenting opinion, Justice Smith observed as follows:
- More recently in Chatterjee, the Court reiterated the majority’s views from CWB and Lafarge that a constrained approach should be adopted to the application of the doctrine of interjurisdictional immunity in contrast with the preferred (and presumably more robust) application of the doctrine of paramountcy as better reflecting the principle of concurrency in Canadian federalism [at 224]
The majority on appeal took a different approach to the application of the doctrine of interjurisdictional immunity. In short, they did not agree that it had such a limited application:
- The trial judge’s error was in moving directly from this conclusion to the doctrine of paramountcy. As I read British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, [2007] 2 S.C.R. 86, [Lafarge] and Canadian Western Bank at para. 78, the path is not so direct. The doctrine of interjurisdictional immunity must still be considered.
The majority's interpretation of the relevant Supreme Court decisions was that the interjurisdictional immunity could still "give breathing room to provincial activity in its exclusive domain" [para 156]. Considering the legislation and its surrounding context, the majority observed that:
- In this case, Insite is a provincial undertaking. It is a health care facility created under and regulated by provincial legislation within the province’s exclusive power. The only purpose of a health care facility is to provide health care services. The supervised drug injection service it provides is, as the trial judge found, “vital” to its provision of health care services to the community it serves (at para. 117). It would be difficult to envisage anything more at the core of a hospital’s purpose, than the determination of the nature of the services it provides to the community it serves. Indeed, it would be difficult to envisage anything more at the core of the province’s general jurisdiction over health care than decisions about the nature of the services it will provide. [para 157]
The majority engaged with the principle that the doctrine should be used sparingly. They viewed Insite as a very limited exception to the federal law, and one that did not present a threat to the overall intent of the federal law:
- The health care service immunized from the application of ss. 4 and 5 of the CDSA is very specific. The immunity would apply only to exempt a health care service considered essential by a provincial agency with the authority to make that decision under provincial legislation from the application of ss. 4(1) and 5(1) of the CDSA. [para 167]
The above comments of the majority were clearly designed to address concerns that their suggested approach would be a threat to the the federal law. The majority later stated that there decision should not be viewed as a 'form of provincial paramouncy' [para 175]. Indeed, the majority seemed to suggest that Insite could be viewed as consistent with the ultimate aims of that law:
- ... the service, as the trial judge found, assists in eliminating the market for illegal drugs, by encouraging addicts to seek services consistent with the long-term goal of the criminal prohibition against possession for personal use. [para 169]
The majority decision seemed inspired by a concern for the division of powers between federal and provincial governments. The majority's position here is best summarised as follows:
- If interjurisdictional immunity is not available to a provincial undertaking on the facts of this case, then it may well be said the doctrine is not reciprocal and can never be applied to protect exclusive provincial powers ... If it is the exclusive preserve of the federal government, then Ottawa has gained a powerful new avenue for wresting legislative power from the provinces.
Suggested approach for Supreme Court
The decision at trial (and apparently endorsed by Justice Smith on appeal) seems to throw the balance of federalism decidedly in favour of the federal government.
It is clear from their reasoning that the doctrine of interjurisdictional immunity would be of very limited application. Indeed, their reasoning seems to suggest that the doctrine should not be available in cases of double aspect - the doctrine of federal paramountcy. The net effect is that in any case involving double aspect, the federal law is allowed to operate at the expense of the provincial law. This would seem to undermine the very basis of a federal structure, where provinces and the federal government share the role of governing.
We do not accept that this is the type of federalism contemplated by the constitution. The constitution involves a division of powers between federal and provincial governments. If a provincial law falls within a valid head of power, then it is the doctrine of federal paramountcy that should be used 'sparingly'. A too ready application of that doctrine seems a far greater threat to federal structure inherent in the constitution.
The outcome at trial seems all the more remarkable when one considers that the provincial law may not in truth be at odds with the federal law at all. Yes, the provincial law is undoubtedly contrary to the express terms of the federal law. However, what is the underlying purpose of both laws. It seems to us that the actual true intention of both parties is to combat drug addiction, and its effects on society. The federal law chooses to achieve this by criminalizing the act of possession. The provincial law chooses to achieve this via the Insite facility. The facility introduces addicts to services that may ultimately allow them to break the hold of addiction. Taken from this perspective, is there in truth a double aspect ? Or are the two laws simply different approaches to the same issue ?
It is difficult to understand the concern that Insite presents a threat to the federal law. Indeed, we are not aware that any such evidence was actually presented. Such concern seemed more theoretical in nature. The majority on appeal observed that Insite was a very limited exception to the federal law - we agree. This point seems to be reinforced even further when one considers the extensive evidence surrounding the establishment of the Insite facility. The facility was clearly designed with the local community in mind. That community is highly specific, and not found elsewhere in Canada. Where then is the concern that Insite will present some form of threat to the federal law ?
In the very specific circumstances of this case, we feel that the doctrine of interjurisdictional immunity must be applied so as to protect an otherwise valid provincial law. As Justice Huddart observed: "it would be difficult to envisage anything more at the core of a hospital`s purpose, than the determination of the nature of the services it provides to the community.” To allow such a law to fall at the hands of a federal law is an outcome contrary to the spirit of federalism under the constitution.
Question 2
'Reflecting on a range of perspectives, including those raised by Lessard, what values are most at stake when applying the division of powers analysis in this case? You might consider issues such as the role of “cooperative” federalism in a democracy, the role of local community activism in democratic politics, and the contested characterization of the “facts” in this case.
In this unique case, the principle of federalism, diversity and democracy, for which we are govern does not reach formally into profoundly marginalized communities (DTES). To attempt to use the same analysis when deciding about under which power of government this matter fall (Provincial Health Care Services v. Federal Criminal Law) will not achieve the intent or view of what is ultimately protected in a Confederation State This unique, local situation can create a new way, almost abstract based in different values to achieve the goals of the local community, city, province and ultimately the state in perceiving marginalized, unrepresented communities with no political representing power. As Lessard states “The DTES community is not recognized as a political community in the legal, constitutional discourse of self-government.”
As such, in dealing with this type of situation there should be a different set of approach on different values to consider when applying the division of powers analysis. This uniqueness should be dealt in a different perspectives that the ones previously recognized by the Supreme Court of Canada. That is that the SCC will have to depart from previous decision to offer an extensive meaning to the “Living Tree Doctrine”.
Its here where the doctrine of subsidiarity can make a difference. “the proposition that law-making and implementation are often best achieved at a level of government that is not only effective, but also closest to the citizens affected and thus most response to their needs, to local distinctiveness and to population diversity.”
Lessard, also propose to start recognizing “urban communities such as the DTES as “unsettled” neo-colonial spaces that demand a more sophisticated calculus of democratic of democratic self government than the simplistic and formal federal-provincial binary provides”. Maybe this path of reasoning will allow the governments provincial and federal to achieve and response the necessity of marginalized communities (DTES) in a more efficient and compassionate way."
Reflection
After you have completed the review exercise, read the final decision of the Supreme Court of Canada. Do you agree with their decision? Are you surprised by it?
Summary of the decision
The Supreme Court first confirmed that the federal law was valid. The pith and substance of the law fell within the criminal law power [para 52]. In that respect, the Supreme Court noted that the protection of public health and safety from the effects of addictive drugs is a valid criminal law purpose [para 52].
The Supreme Court then rejected the argument that the federal law did not apply to Insite, as the facility served the public interest. There is no principle of Canadian law that federal criminal laws cease to apply if their application is inconsistent with the public interest, as defined by a province [para 54].
More relevantly for present purposes, the Supreme Court then considered whether inter-jurisdictional immunity served to protect Insite from the federal. The Supreme Court observed as follows:
- "Recent jurisprudence has tended to confine the doctrine of inter-jurisdictional immunity. In Canadian Western Bank, the majority stated that “although the doctrine of inter-jurisdictional immunity has a proper part to play in appropriate circumstances, we intend now to make it clear that the Court does not favour an intensive reliance on the doctrine, nor should we accept the invitation of the appellants to turn it into a doctrine of first recourse in a division of powers dispute” (para. 47). More recently, in COPA, the majority held that the doctrine “has not been removed from the federalism analysis”, but rather remains “in a form constrained by principle and precedent” (para. 58)" [para 61]
The Supreme Court noted that the caution in applying the doctrine of inter-jurisdictional immunity reflect three related concerns:
- First, the doctrine is arguably at odds with the prevailing model of federalism which permits significant overlap between the federal and provincial areas of jurisdiction. [para 62]
- Second, the doctrine is also at odds with the prevailing model of co-operative federalism, which "increasingly features interlocking federal and provincial schemes. [para 63]
- Third, the doctrine may overshoot the power it is intended to protect, and so create "legal vacuums" [para 64]
Applying these principles to the present case, the Supreme Court concluded that there could be no application of the principle of interjurisdictional immunity in the present case.
Having reached this point, the Supreme Court noted that the applicants had conceded that the federal laws apply to Insite, whether by paramountcy or by the requirement that the VCHA exercise its delegated authority within the limits of the criminal law. [para 72]
Reflection
From a legal stance, it is of course difficult to fault the logic of the Supreme Court.
We do not find their decision surprising. The prevailing philosophy of the Court does appear to be one that favours federal power over provincial. This decision continues that theme. However, we were surprised by some of the steps that were taken by the Supreme Court in reaching their decision.
The Supreme Court did note that the principle of interjurisdictional immunity was constrained by "principle and precedent". As to precedent, the Supreme Court referred to various instances where the principle has been applied - "aviation, ports, interprovincial rail and federal communications works" [para 60]. It then said it has never been applied to a "broad and amorphous area of jurisdiction" [para 60]. One question that comes to mind is exactly when one subject matter is sufficiently narrow that it meets the criteria for protection, and when it becomes too broad for that same protection.
In perhaps the most surprising aspect of the decision, the Supreme Court noted "the proposed core of the provincial power over health has never been recognized in the jurisprudence" [para 67]. This was a point that had not been challenged at trial or appeal, and so the Supreme Court's approach here was a surprise. This in itself seems quite a blow to provincial law making power.
The Supreme Court observed that the claimants had failed to identify a "delineated" core [para 68]. Again, this approach stems from the concern that application of the principle of interjurisdictional immunity to "a broad and amorphous area of jurisdiction" [para 60]. This conclusion seems quite unfortunate and frustrating, given that the evidence overwhelmingly established the unique nature of the DTES, and that Insite was a direct response to the needs of that community. Was Insite not the perfect opportunity to give the principle of interjurisdictional immunity a "limited" run ?
One disappointment was that the Supreme Court's pith and substance analysis did not seem to engage with the idea that the two laws might in fact be for similar end purposes. If they had engaged in that type of analysis, they may have concluded that the the two laws were "interlocking federal and provincial schemes", and so consistent with the principle of cooperative federalism.